Non-service of notice under Order 21, Rule 16, Civil P.C. is an essential pre-requisite to the assumption of jurisdiction by the Court in a proceeding to execute the decree.

JUDGMENT

B.K. Mukherjea, J. - This is an appeal on behalf of one of the judgment-debtors and is directed against an order of remand passed by the District Judge of Bakergunj in Miscellaneous Appeal No. 120 of 1937. The facts so far as they are material for purposes of this appeal stand as follows: A rent decree was obtained by Mazubali Chaudhury as well as by his wife and son on 25th May 1933. On 21st July following the wife and the son who were co-decree-holders of Mazubali assigned their interest in the decree to Mazubali together with their landlord's interest in the holding. The decree was put into execution on 17th November 1933 and on 9th July 1934 the holding in arrears was put up to sale and purchased by one Asimannessa Bibi, one of the respondents before me. On 8th September 1936 proceedings were commenced by the present appellant, who was one of the judgment-debtors for setting aside the sale under the provisions of Section 47 and Order 21, Rule 90, Civil P.C. Various allegations were made impeaching the regularity of the sale by the executing Court. It was held by the Court that there was no notice served on the assignors and the judgment-debtors under the provisions of Order 21, Rule 16, Civil P.C., and consequently the sale was a nullity out and out. On this view of the case the judgment-debtor's application was allowed and the sale was set aside on condition of paying the decretal dues. Against this order an appeal was taken to the Court of the District Judge of Bakergunj. The learned District Judge agreed with the trial Court in the view that the sale was a nullity by reason of non-service of notice under Order 21, Rule 16, Civil P.C. Nevertheless he sent the case back to the trial Court on remand as he was of opinion that the decree-holder had not a fair and full hearing in the trial Court and that notices had not been served upon the other judgment-debtors prior to the hearing of the application for setting aside the sale. It is against this decision that the present second appeal has been preferred.

2. Mr. Guha for the appellant contended before me that after having come to the conclusion that the sale was void it was not competent to the lower Appellate Court to set aside the judgment of the trial Court and sent back the case for a fresh hearing. Mr. Gupta who appears for the respondents has conceded that if the decision of the lower Appellate Court as regards the nullity of the sale stands, the order of remand was certainly not necessary or proper. He attempted however to support the judgment of the lower Appellate Court on the ground that the sale was not a nullity and consequently the petition of the judgment-debtor u/s 174, Ben. Ten. Act, should be heard and decided. The point for my determination is whether non-service of notice under Order 21, Rule 90, Civil P.C., makes the sale void ab initio. Now Order 21, Rule 16 provides inter alia that where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of the decree-holder in the decree is transferred by assignment, the notice of the application for execution of the decree shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard the objection as to its execution. It seems tome that the service of notice as contemplated by this Rule both upon the transferors and the judgment-debtors is a condition precedent to the execution of the decree and the law is perfectly clear when it says that the decree shall not be executed unless it has heard the objections, if any, that have been raised in such execution. Obviously the Legislature intended that the question of the validity of the assignment should be determined once and for all in the presence of the parties interested, after due notices had been served upon the judgment-debtors, and the assignors as well. It seems to me therefore that the service of this notice under Order 21, Rule 16, Civil P. C, is an esse